Your art and time are precious and deserve to be protected. Contracts can be complicated, so we spoke to Raymond Charles, a commercial lawyer who advises on contract law.
Charles says: “Contract law, for an artist, may seem dull, time-consuming and unnecessary, but it’s important because it’s likely that you’ve poured your heart and soul into your work. It’s precious, and it deserves to be protected.”
Negotiating with clients can be difficult, and there can be a wide number of reasons for this. It can result in awkward conversations, leaving both sides of the party feeling unsatisfied. If an artist feels unsure about the client’s needs or views, then it’s easier to discuss and agree on those issues when the contract is being negotiated, when both parties are on good terms. rather than try to resolve the issue after a dispute has arisen. “It’s better to avoid a dispute by having a good agreement. When contracts go wrong, it can become very costly.” Pippa Young, a contemporary painter, has lost £7,000 to galleries in recent years: “There are other artists who are missing more money than me, and they’re really struggling.” She adds: “I almost lost £30,000 worth of payment, so I spent a lot of time chasing up money. I would never have seen that money.”
With the lack of funding for art in the UK and potentially irregular jobs, artists can’t afford to lose money, so what are the key points to consider for an effective, clear and concise contract which protects you as the artist and doesn’t leave your client in the dark?
Don’t ignore the details
If a contract is vague on some key points, it leaves an artist more vulnerable to being exploited, so always make it watertight; make sure you include important elements like copyright ownership. Any resulting dispute will cost you time and money. Pippa says: “Nobody has enough money to take clients to court because lawyers cost a lot of money.”
Make sure it’s in writing
Verbal contracts, although legally binding, are risky to rely on. Never agree on a contract verbally because there’s no record of what you agreed to, so you can’t enforce it very easily.
Pippa has often negotiated with galleries verbally: “I have been showing with galleries for ten or eleven years, and they didn’t give me any contract. In the early days, there was no ring-fencing of artists’ funds; everything was done verbally. And on reflection I wish I had used written contracts because I usually expect payment in thirty days, and I don’t think I’ve ever been paid in that time. Artists are so tentative with agreements. I think the feeling was that you should just be grateful to have your art shown, let alone be paid for it.”
Be sure about who the contract is with
At the first stage of negotiation, it’s important to know who you are dealing with: For example, if someone owning a company wants a painting, you need to be clear about whom the painting is for, the individual or for their company, such as to use in their advertising campaigns. If it’s for the company, you need to sign the agreement with their company and not with them as an individual.
Reducing the risk of non-payment or cancellations
Some artists make the mistake of leaving payment until the commissioned work has been completed. Before even picking up a paintbrush, you could ask for 25% of the payment to be paid upfront into your bank account. This requirement can be included in the agreement. It might even pay to ask for a bigger cut upfront because they’ll try and knock you down regardless of the price: “Try asking for 50% of the payment initially and be prepared to be negotiated down,” says Charles.
In the case of photographers who schedule in shoots, it’s useful to include at least a 24-hour cancellation policy, as a late cancellation will cost money and won’t give you enough time to arrange a different job.
Be clear about the client’s expectations
Establish a mutual understanding of what customers expect to prevent anything getting lost in translation. It can be a good idea to include in the contract a provision that the artist will produce a draft drawing before the final artwork is created. This can be followed by another payment instalment once the draft is accepted. Above all, you need to include language in the contract that specifies explicitly what you are going to produce, from the materials used to a description of what the painting will look like as much as possible.
International customers
If you’re working with international customers, you will need to establish what law the contract is getting signed under. Charles recommends sticking to English law: “If you agree to use another country’s law. You won’t know how the law will impact your agreement, particularly if there’s a dispute.”
Copyright law
The art always belongs to the artist, unless your agreement says otherwise, so the agreement needs to be clear on this. When the artist sells their work, they need to decide whether they want to sell the other party the copyright as part of the deal or if they prefer to prevent their work from being copied and sold by someone else by retaining the copyright. If this is your preference, you must specify in the contract that the ‘copyright in the painting belongs to the artist’. Even if the artist decides to sell the copyright with the artwork, they can still retain a right to be identified as the creator, which might be very beneficial for the future development of their reputation.
Working with models
Still life artist Susan Chen expressed her concerns around painting models: “I actually find it difficult now to paint people as their charges go up because they are focused on the profit. And now it’s easier to just paint yourself or things where other people aren’t involved because I’m worried someone might try to sue me later.”
This can be addressed in the contract. Charles says: “An agreement can be drawn up between the artist and model. You should make it clear that the artist will be paid for the modelling and beyond that won’t have any other further rights in the painting.”
Although they are not glamorous, contracts are necessary. They are the unseen force that guards your peace of mind, your creativity, and your money. Without one, you’re opening the door to misunderstandings, late payments, or worse, someone else taking credit for the work you’ve been working on for weeks or months.
The good news? Writing a strong agreement doesn’t require you to be a lawyer, although it helps to get hold of a good agreement template to get you started. All you have to do then is plan ahead, be prepared, and above all, get it all in writing. Treat every project as though it matters, whether you’re creating a mural, a campaign, or your first print sale. Your artwork deserves to be preserved and your time does too.
Click this link for a contract template: https://teresakogut.com/wp-content/uploads/2013/04/Fine-Art-Commission-Agreement1.pdf Credit: Teresa Kogut.